62 F.

3d 33

UNITED STATES of America, Appellee,

v.
Brian D. STURTEVANT, Defendant, Appellant.
No. 95-1018.

United States Court of Appeals,

First Circuit.
Heard July 31, 1995.
Decided Aug. 10, 1995.

Peter B. Krupp, Federal Defender Office, Boston, MA, for appellant.

Sheila W. Sawyer, Asst. U.S. Atty., with whom Donald K. Stern, U.S.
Atty., Boston, MA, was on brief for the U.S.
Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit
Judges.
PER CURIAM.

On February 7, 1992, four Boston police officers patrolling the Cathedral

Housing Projects, observed appellant Brian Sturtevant striking Eric Randolph
about the head. After separating the two individuals, the officers searched
Sturtevant and discovered a loaded sawed-off shotgun concealed inside one leg
of his pants. They also found two shotgun shells in Sturtevant's right coat
pocket and one "hit" of crack cocaine inside his glove.

Sturtevant was indicted on federal charges of being a felon in possession of a

firearm, 18 U.S.C. Sec. 922(g)(1), and possessing an unregistered firearm, 26
U.S.C. Sec. 5861(d). He was also charged in state court with assault and battery
and possession of a controlled substance. On September 28, 1994, Sturtevant
pled guilty to the federal charges and was subsequently sentenced to 72 months'
imprisonment.

The presentence report recommended that Sturtevant receive a four-level

increase in his base offense level pursuant to U.S.S.G. Sec. 2K2.1(b)(5), which
requires a four-level enhancement "[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony offense...." The
probation officer concluded that the enhancement was warranted because
Sturtevant had possessed the sawed-off shotgun during his altercation with
Randolph and--according to Randolph's initial statement to the police1 --had
threatened to shoot Randolph prior to the fight.
4

At sentencing, Sturtevant opposed the recommended enhancement, and

submitted an affidavit from Randolph, dated November 22, 1994, in which he
said that Sturtevant had never threatened him or mentioned a gun. The
government countered with an affidavit from Randolph, dated November 28,
1994, saying that he (Randolph) did not recall making the precise statements
recounted in the police report, but he did remember telling the arresting officer
that (1) he thought that Sturtevant must have been carrying a gun to risk coming
into his drug territory and punching him in the face, and (2) Sturtevant said that
he was now going to be "pumping," i.e., selling drugs, in Randolph's area.

At Sturtevant's request, the district judge granted a continuance until December

16, 1994, but indicated that an evidentiary hearing, also requested by
Sturtevant, was probably unnecessary. On December 16, 1994, the district
court applied the four-level enhancement, finding that the possession of the
shotgun played a role in emboldening Sturtevant's actions towards Randolph.
The court said that it gave little weight to Randolph's statements, but explained
to Sturtevant that he made these findings "because you were out there on the
street with a deadly weapon; it might have been in your pocket, but it was there
in reserve."

The only issue on appeal is whether the district court abused its discretion in
failing to hold an evidentiary hearing before levying the four-level
enhancement. Although Sturtevant says that an evidentiary hearing was needed
to test Randolph's credibility, he has never directly disputed Randolph's claim-twice repeated and never repudiated by Randolph--that Sturtevant started the
fight. There was also unrefuted evidence, independent of Randolph, that
Sturtevant actually possessed a loaded sawed-off shotgun during his assault.
The assault was a felony offense under the guidelines. U.S.S.G. Sec. 2K2.1
comment. (n. 7); M.G.L.A. ch. 265, Sec. 13A.

Given the broad reach of the "in connection with" requirement, United States v.
Thompson, 32 F.3d 1, 3 (1st Cir.1994), we think that the carriage of the gun
during the assault satisfied the requirement of section 2K2.1(b)(5) that a
firearm be "used or possessed ... in connection with another felony offense...."

The courts have held repeatedly that the presence of a readily available weapon
in a location containing drugs is enough. E.g., United States v. McFadden, 13
F.3d 463, 465-66 (1st Cir.1994). Here, there might be enough undisputed
evidence for the district court to conclude that this assault was associated with
drugs. Still, if the enhancement turned on Sturtevant's purpose or alleged
threats, perhaps a hearing might have been required.
8

But we think that on the present facts the motive for the assault does not matter.
Sturtevant carried the shotgun on his person during his assault. The connection
between that crime (the assault) and the gun seems to us no less close than the
connection between a drug hideout and gun. In each instance, the weapon
provides an added sense of security and has a substantial potential for use in the
course of the particular crime in question.2 This is not the case of an accountant
who, while forging checks, happens to have a gun in the desk drawer.

In short, a hearing would have served no purpose. Sturtevant was free to testify
but made no request to do so, and Randolph's testimony would not have altered
the result even if he had said that no threats were made and the reason for the
assault was a mystery.

10

Affirmed.

The officer, who is now deceased, reported (in the police report and before the
grand jury) that Randolph said that Sturtevant approached him prior to the fight
and declared, "get the fuck out of here, I'm taking over the drug trade now, and
if you fuck with me, I'm going to shoot you."

Compare United States v. Eaton, 890 F.2d 511, 512 (1st Cir.1989), cert. denied,
495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 291 (1990) (drug case), with United
States v. Routon, 25 F.3d 815, 819 (9th Cir.1994) (car theft). This court cited
Routon with approval in United States v. Thompson, 32 F.3d 1, 6 (1st Cir.1994)